1DISTRICT COURT, CITY AND COUNTY OF DENVER,STATE OF COLORADO1437 Bannock StreetDenver, Colorado 80202Plaintiff: SCOTT E. GESSLER, individually and in hiscapacity as the Secretary of State of the State of Coloradov.Defendants: DAN GROSSMAN, SALLY H. HOPPER,BILL PINKHAM, MATT SMITH and ROSEMARYMARSHALL,in their official capacities as members of theIndependent Ethics Commission and the INDEPENDENTETHICS COMMISSION, an inferior tribunal of the Stateof Colorado ______________________________________________ Attorneys for Plaintiff*:David A. Lane, #16422K

2Plaintiff Scott E. Gessler (“Plaintiff” or “the Secretary”), by and through his undersigned attorneys, respectfully submits this Second Amended Complaint.I.

INTRODUCTION1. On June 19, 2013, the Colorado Independent Ethics Commission (“theCommission” or “IEC”) issued a written order in IEC Case No. 12-07, finding that the Secretaryviolated C.R.S. § 24-18-103(1) in the manner in which he utilized $1,396.89 in discretionaryfunds governed by Colorado statute.

See

C.R.S. § 24-9-105(1) (emphasis added) (“for expenditure in pursuance of official business

as each elected official sees fit.

”).2. By doing this, the Commission has exceeded its jurisdiction granted to it byAmendment 41 (Article XXIX) to the Colorado Constitution and C.R.S. § 24-18.5-101. This isso, because the Commission does not have jurisdiction to adjudicate claims of violation of either C.R.S. § 24-18-103(1)or C.R.S. § 24-9-105(1). Moreover, IEC Case No. 12-07 does not includeallegations of the Secretary’s violation of Amendment 41’s gift or lobby bans, nor does it eveninvolve any general allegations of influence peddling.3. In the more than six months that the Commission considered IEC Case No. 12-07,the Commission repeatedly abused its discretion, acted arbitrarily and capriciously, politicized the proceedings, denied the Secretary his due-process rights to fair notice and hearing, and otherwise acted contrary to law. The Commission refused to provide the Secretary with anynotice of the legal allegations he faced – until after his hearing. In other words, the Commissionnever told the Secretary what law he allegedly violated before his hearing, so he could properlydefend himself at his hearing. Moreover, the Secretary faced the continued bias – or at least,appearance of bias – by two of the Commission’s five commissioners. These two commissioners – who supported the Secretary’s political opponents or potential political opponents – politicized the proceedings, and the Commission utilized an incorrect legal standard in determining theSecretary’s repeated motions for recusal. The Commission even arbitrarily denied the Secretarythe right to call witnesses to the hearing necessary to his defense. These are just a few of themany examples of the Commission’s abuses of discretion, arbitrary and capricious actions, politicization of the proceedings, and other actions that violate the law and deny the Secretaryhis due-process rights to fair notice and fair hearing.4. Finally, the Commission found a violation, even without any evidence to supportits finding. The undisputed evidence at the June 7, 2013 hearing demonstrates that the Secretarylegally, ethically, and appropriately utilized the $1,818.89 in state funds in dispute in this case.Every witness and every piece of evidence, including the Commission’s own investigator and theComplainant’s witnesses and exhibits, confirmed this at the hearing. The Commission heard noevidence of any ethical violation, because no such evidence exists. Whether it is thecomplainant’s or the Commission’s evidentiary burden, neither of them met it. Yet theCommission misread an exhibit containing an email and incorrectly held that this email(somehow) created a legal obligation that the Secretary violated. Thus, the Commission abused its discretion, acted arbitrarily and capriciously, violated the Secretary’s due-process rights to fair

3notice and hearing, and otherwise acted contrary to law by finding against the Secretary, withoutevidence to support the finding.II.

GENERAL ALLEGATIONS5. Plaintiff Scott E. Gessler is a resident of the State of Colorado. The Secretarycurrently holds the elected office of Secretary of State for the State of Colorado. The Secretary brings this action pursuant to C.R.C.P. 106(a)(4) individually and in his capacity as Secretary of State for the State of Colorado.6. Defendants Dan Grossman, Sally H. Hopper, Bill Pinkham, Matt Smith, and Rosemary Marshall are residents of the State of Colorado and are members of the Commission.This action is brought against these Defendants in their official capacity as members of theCommission.7. The Commission is an inferior tribunal and government body of limited jurisdiction arising under Colo. Const. Art. XXIX §5(1) and C.R.S.§24-18.1-101.8. The undisputed evidence in IEC Case No. 12-07 shows that the Secretaryutilized:a. $1,278.90 in fiscal year 2011-2012 discretionary funds to travel toSarasota, Florida (airfare, luggage, three nights of lodging, and meals) toattend and serve as an expert panelist in an election-law seminar and Continuing Legal Education (CLE) program sponsored by the Republican National Lawyers Association (RNLA) and accredited by the ColoradoSupreme Court;

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b. $422

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in Department funds to return early from Florida, at his chief of staff’s request after discussions with Colorado law-enforcementauthorities, following two specific and credible threats of violence againstthe Secretary, his wife, and their then-four-year-old daughter, directlyrelated to the Secretary’s official duties; and c. $117.99 in fiscal year 2011-2012 discretionary funds for end-of-year reimbursement, submitting a general memorandum in lieu of receipts, butfor which the Secretary has subsequently provided a specific breakdownof $616 in unreimbursed expenses.

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On May 20, 2013, the Secretary reimbursed the Department of State for this expenditure toavoid the appearance of impropriety.

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This sum was for airfare only even though the department authorized hotel expenses as well. No such expenses were paid, and no evidence in the record indicated hotel expenses wereincurred to deal with these vicious threats.